Following Montana’s administrative laws and regulations, department staff did their job and rejected Arch Coal’s application in early April of this year, sending a 41-page deficiency notice to the company.

Mike Rowland, Arch Coal’s Montana Director speaking in Lame Deer, MT at a public hearing on the proposed Otter Creek coal mine.

Words and phrases used over and over again in the deficiency notice include: must be submitted, inadequate, misleading, mis-represented, contradictory, not acceptable, unacceptable, inconsistencies, missing CAD data, correct this information, incorrect, discrepancy, unclear, correct this statement, confusion, does not adequately address, resubmit, inappropriate, insufficient, error, improper, missing, DEQ does not agree and cannot be verified. I’m not taking these words out of context. Read it for yourself. These phrases and words were used consistently in the document referring to Arch Coal’s data or analysis of the data.

Arch Coal will argue that it is common for mining permit applications to be returned to the company for more details or for minor reworking of the document. This is true.

What isn’t common, in Montana at least, is for a mining company to change the language of the laws and administrative rules in their permit application to “lessen their commitment.”

Yeah, they did that.

Rewriting Montana laws

Now, either Arch Coal has people working for them that are not qualified to produce a permit application or they intentionally changed the language of the regulations to see if they could slip one by the state of Montana and lessen their responsibilities to the land, water, air and citizens. Arch is used to working in Wyoming so my hunch is it’s the latter of the two.

On page 24 of the deficiency notice, Department staff write,

It appears that in some instances, OCC (Otter Creek Coal Co.) recites the applicable rule verbatim, and in other instances, modifies or omits rule language.

Then again on page 24, DEQ states,

OCC has again added the qualifier, “where feasible” to the permit language in the following paragraph (17.24.631(3)(b). OCC’s version of ARM 17.24.631 is not acceptable and must be modified: there is no ‘where feasible’ provision in the rule.

And on the final page there is one last sentence from Environmental Quality staff,

DEQ has noted that OCC has changed the language of the rules throughout the application to lessen the commitment required by the rules. As a reminder, OCC will be held to the standards set forth in the ARM l7.24.XXXX first and foremost, before the commitments in the permit application.

Where Feasible?

I think it is important to take a moment and think about what they did. It is something that takes a level of arrogance that is almost unimaginable to the average person. But then again, when you are acting on behalf of a large corporation like Arch Coal — with its numerous subsidiary companies — and no individual has to actually take responsibility for the actions of said corporation, I guess any discomfort at breaking rules gets dispersed among enough people that it is no big deal.

Wouldn’t it be great if you could just follow laws “where feasible.” Oh, I’m sorry officer, I was speeding through a school zone because slowing down just didn’t seem feasible.

What else is mind-boggling is that the small article in the Montana newspapers about the deficiency notice stated that Montana regulators were just asking for more information about the mine. The article completely ignored that Arch Coal didn’t submit entire required sections of the permit and rewrote Montana’s administrative rules.

It is understandable that Arch Coal is in a hurry. Port proposals to export coal to Asia on the west coast are dropping like flies and they don’t have a domestic market for their coal. They are in a race against time, history and the citizens of southeastern Montana, and Arch Coal is losing.

Thank the Montana Department of Environmental Quality staff

If you have a moment go ahead and send a thank you to the staff at the DEQ who did such a great job reviewing Arch Coal’s permit application.

DEQCoal@mt.gov

The coal industry has been ripping off taxpayers for decades, but the tides may be turning. (Photo: Philip Taylor)

It’s hard not to feel a little giddy about this development (at least for those of us who track this stuff for a living). When your entire business model is pegged to degrading the environment, you had better be sure that you’re keeping your financial ledgers clean, but companies like Peabody, Arch Coal, and others have been scamming the public for so long that it’s second nature. The U.S. has shifted away from burning coal for power, but other countries—particularly in Asia—are still paying top dollar for it, and the industry is trying to take advantage of record prices by mining cheap American coal and selling it at tremendous profits overseas. Their mistake was in trying to avoid paying the federal government the royalties it was due, by setting up corporate middlemen and various other dodges that skirted the boundaries of legality and undermined the public trust. As Wyden said in a press release:

This is so obvious it shouldn’t need to be said: Coal companies need to be paying taxpayers all of the money they are owed. If regulators, or decades-old laws, are not doing enough to protect the public interest, our committee intends to find out, and to fix it.

Pod of orcas near Mayne Island, just miles away from a major proposed coal export terminal. (Photo: Miles Ritter)

But regardless of what motivates our elected officials, if the Senate starts taking the profit question seriously, they’ll have to dig into the question of who is really benefiting from all this mining — is it the American people, or is it a few industry executives? The truth ain’t rocket science, and it could go a long way toward protecting iconic species and the health of our planet.

Take Action! Protect threatened wildlife like salmon and orcas by speaking out against coal exports in the Pacific Northwest.

You can learn more about the danger of coal exports at NWF’s website, or check out Power Past Coal for more ways to get involved.

Otter Creek Valley region – Photo taken by Ecoflight.

Quick background

On March 8, 2010, Otter Creek Coal, LLC, a subsidiary of Arch Coal, the second largest U.S. coal producer, leased 572 million tons of coal from the State of Montana. On October 23, 2012, the Montana Supreme Court confirmed that the leasing of this coal does not authorize or permit any mining activity and does not authorize or permit any degradation of land or water.

In addition, the leases do not allow any significant surface disturbance prior to acquisition of all required permits from the State of Montana (Montana Supreme Court Decision, DA 12-0184 and DA 12-0185, 10/23/2012). And, according to both the District Court and Montana Supreme Court, Arch Coal, by leasing the Otter Creek tracts from the State, acquired “nothing more than the exclusive right to apply for permits from the State.” Under Montana law—section 82-4-221 of the Montana Code—Arch Coal must obtain an operating permit from the state before it can commence mining.

This permit must include detailed plans for mining, reclamation, revegetation and rehabilitation of the disturbed land. Furthermore, the mine operation and reclamation plan must be reviewed and approved by the State Land Board. On July 25, 2012, Otter Creek Coal, LLC submitted an application for a Strip Mining Permit to the Montana DEQ.

Location of Otter Creek Coal tracts and proposed Otter Creek Mine. Map by NWF.

Incomplete permit application

In the cover letter submitted with the permit application package, Arch itself admits that its permit application is incomplete, stating that over 10 required sections are not included “for various reasons” and will be supplied at a later date, including a certificate of insurance, cultural site testing, wildlife data, agricultural production, cultural sites, revegetation map, post-mining drainage plan, bond calculation, cultural resources mitigation and reclamation plans for Prime Farmlands.

Sufficient Information?

And yet, even though Arch Coal has left out critical environmental, agriculture, and wildlife data, they state that the Permit Application Package contains “sufficient information” to initiate the environmental review process. How can the State of Montana start an environmental review process for a region best known for its wildlife, agricultural values, and cultural sites if it doesn’t have any wildlife, agriculture and cultural site data?

Notice of deficiency

On October 25, the Montana DEQ stated the obvious and sent a Notice of Deficiency to Arch Coal because, well, its application was incomplete. As of today, we are still waiting on crucial information from Arch Coal, information that is necessary in order to begin an environmental review process.

In their initial application they stated they would submit the wildlife information by August. I called the DEQ yesterday to ask if they had submitted any additional information and the answer, unsurprisingly, was no. Arch Coal believes that they can submit a shoddy permit application and still proceed with their mine plans, and they would be right because the state of Montana is going along with them, no questions asked.

So, even though the company has not submitted the necessary data, it is moving forward with hiring a contractor to prepare an Environmental Impact Statement. To paraphrase Walter in the film The Big Lebowski, “doesn’t anyone give a damn about the rules?” I think we all know the answer to that.

Coal Train

As FWP informed the Surface Transportation Board (STB) five years ago, the railroad will very likely have an adverse effect on the MCFH. The damages to the fish hatchery will have a direct and lasting effect on efforts to recover populations of pallid sturgeon.

Why were we so surprised?

No Public Notice

There was no public notice that the Commission was considering taking this up at their October 11 meeting. In Montana, our constitution guarantees us the right to be notified of and participate in public agency decisions. Montana citizens have an expectation of transparency and openness from our public agencies. That is part of what makes Montana unique. We have some of the strongest laws in the nation that protect our right to fully participate in our government’s decisions. As was reported in the Great Falls Tribune, Montana FWP head Joe Maurier “scoffed” at our criticism that the public had not been properly consulted on this issue.

Maurier asked a reporter, “How much notice is enough notice?” The Great Falls Tribune responded with a great opinion piece, entitled Enough Notice is the Law, Not An Option.

Tongue River Railroad’s Permit Problems

The Tongue River Railroad, which has been trying to get its tracks laid for over 30 years, lost its permit to construct in June 2012. This was prompted by a 2011 decision where the 9th U.S. Circuit Court of Appeals ruled the railroad’s environmental impact statement (EIS) was insufficient. Therefore, this railroad has lost its permit and no longer has the authority of eminent domain. Why would Montana FWP still have this easement agreement on the table when they are under no legal obligation to pursue it?

Jack Tuholske, an attorney who represented landowners in the above mentioned federal lawsuit against the railroad, said the commission has no business considering an easement agreement until the railroad completes a new EIS and is granted a permit by the Surface Transportation Board.

What does this have to do with the pallid sturgeon?

Photo of a endangered pallid sturgeon.  USGS ecologist, Aaron Delonay calls them “an irreplaceable treasure from a time older than the Missouri River itself.”

The Missouri River pallid sturgeon, which are reared in the MCFH “are descended from fish that lived alongside dinosaurs more than 70 million years ago. They’ve weathered ice ages, volcanic explosions and a mass extinction event.” Missoula Independent, October 11, 2012

However, because of dam building and human initiated changes to the Missouri River, biologists believe the species would vanish if we don’t stock the rivers with the fish raised in hatcheries.

Most of the FWP commissioners have said they were uncomfortable with allowing dozens of coal trains to pass through hatchery grounds since wild reproduction of pallid sturgeon is rare to nonexistent in most areas, and therefore human intervention is needed to ensure the survival of the species. The MCFH is one of only a couple of hatcheries in the nation that can keep this species going until we can restore the necessary habitat for pallid sturgeon procreation in the wild.

A USFWS Biologist noted that “given the short time these fish are present at the hatchery, the females will not become habituated to the potential stress of the TRR . . . The TRR may also have impacts on embryo development and larval and juvenile growth and survival.”

Dozens of coal trains going back and forth through the hatchery grounds is an unacceptable risk to a species that federal and state governments and hundreds of individuals have spent their lives trying to protect and restore.

Tongue River Railroad Co. playing by its own rules?

Tuholske said the 9th Circuit Court of Appeals ruling stripped the company’s eminent domain right. The MT FWP Commission members are trustees for Montana’s wildlife. They have an obligation to protect the hatchery and the pallid sturgeon but do not have any obligation to grant an easement across public lands to a for-profit railroad company that doesn’t have the federal permits that they need to construct or operate a railroad.

Cover illustration for Fish on the Line – Missoula Independent

For a detailed news account of this issue, please click here.

For an amazing tale about the pallid sturgeon and recovery efforts, go to the most recent edition of the Missoula Independent for a story entitled “Fish on the Line” by Marian Lyman Kirs.

An Orca breaches near Washington State's San Juan Islands (photo: TheGirlsNY/flickr.com)

The United States currently exports about 74 million tons annually, but producers like Arch Coal and Peabody Energy (two of the biggest polluters on the planet) are targeting new and expanded port facilities in the region, which would allow them to double or even triple that amount.

Coal: A dirty business

As you probably know, coal is one of the dirtiest sources of energy on the planet: it has a huge carbon footprint, contains mercury and other toxic materials, and mining is incredibly destructive to wildlife habitat. It certainly doesn’t fit with the clean, green values of many people in the Pacific Northwest; in fact, Washington state recently negotiated a deal to close down its last remaining coal-fired power plant by 2025.

So, understandably, the port expansion proposals have alarmed locals and caused a heated debate on the merits of the projects. Proponents say that it would bring jobs to the area. Opponents point out that coal export terminals employ relatively few people and are major sources of local air and water pollution.

To make matters worse, rail traffic would increase dramatically: if the ports at Cherry Point and Longview are built, local communities would be forced to deal with 40 extra mile-long coal trains rattling through every day, trailing coal dust and snarling traffic — and damaging fisheries, cropland, and other valuable natural resources.

Coal trains like this one contribute to air and water pollution as they pass through habitat (Photo: Paulv2c/flickr.com)

Stand strong with us against increased coal exports

This is a big deal, and it’s happening now. National Wildlife Federation has partnered with several dozen local and national groups opposed to the coal terminals, in a coalition called Power Past Coal. Together, we aim to protect public health, wildlife, and a clean energy future for the Pacific Northwest. But we need your help! Click on the link below to keep Orcas and other wildlife safe from the threat of coal pollution.

Make sure your voice is heard! Sign the petition to stop construction of new coal terminals on the Pacific coast.

For more information on coal exports, visit NWF.org or PowerPastCoal.org.